FUNDAMENTALS OF NATURAL LAW: Not All Property Is ‘Private’

This post is primarily addressed to my ‘Conservative’ friends, but also to those few ‘Libertarians’ who happen to follow my blogs, as well. I have written several posts about corporations to which these friends of mine have taken offense. They seem to think I am attacking private property. Some have gone so far as to tell me I am sounding like Marx. The problem, however, does not lie with me, but with their flawed understanding of property. They do not differentiate between types of property, especially where its nature and origins are concerned. Our founders did, and they tried to explain it to us. But we have accepted a perversion of what they believed that is designed not to protect property rights, but to consolidate them among a privileged elite. SO I am writing this post in hopes of clearing the air about what the founders taught me about property, and I start with the words Franklin and Jefferson:

“A right of property in moveable things is admitted before the establishment of government. A separate property in lands, not till after that establishment. The right to moveables is acknowledged by all the hordes of Indians surrounding us. Yet by no one of them has a separate property in lands been yielded to individuals. He who plants a field keeps possession till he has gathered the produce, after which one has as good a right as another to occupy it. Government must be established and laws provided, before lands can be separately appropriated, and their owner protected in his possession. Till then, the property is in the body of the nation, and they, or their chief as trustee, must grant them to individuals, and determine the conditions of the grant.”

–Thomas Jefferson: Batture at New Orleans, 1812. ME 18:45

“All the property that is necessary to a Man, for the Conservation of the Individual and the Propagation of the Species, is his natural Right, which none can justly deprive him of: But all Property superfluous to such purposes is the Property of the Publick, who, by their Laws, have created it, and who may therefore by other laws dispose of it, whenever the Welfare of the Publick shall demand such Disposition. He that does not like civil Society on these Terms, let him retire and live among Savages. He can have no right to the benefits of Society, who will not pay his Club towards the Support of it.”

–Benjamin Franklin, letter to Robert Morris, 25 December 1783, Ref: Franklin Collected Works, Lemay, ed., 1

Jefferson tends to be a little more liberal with the implications of property than Franklin, but they both make it clear that a right to non-moveable property does not exist in nature. In order to make land, intellectual rights or corporations into ‘property,’ government must first be established and civil legislation creating these artificial entities must be passed. It is at this point that Franklin clearly explains that, even if such forms of property are allowed to be treated as ‘private,’ they are not. They owe their very existence to government, and if the government owes its existence to the people, then – by extension – so do these forms of artificial property. In other words: if the people created them, the people can regulate them.

At the very foundation of this arrangement is the extension of Natural Rights. If the Creator grants our Natural Rights, then the Creator owns and controls them – not the created. This is why the founders said that certain rights are inalienable, and that no one can justly take them, nor can they be given away or sold. This relationship would then extend to those rights created by society through the Social Contract. For a land owner to tell the creator of his property rights that it no longer has any authority or power over the right it created would be no different than a man telling God He no longer has any authority or control over the land owner’s life. The relationship is the same: in both cases, the created is trying to claim it is now equal to or above the creator. If this assumption is ever accepted, the very foundations of Natural Law would be destroyed. Luckily, Natural Law cannot be destroyed by its creations, which is why we suffer so much calamity when we try to re-write those Natural Laws.

Now, let’s look at the different types of property. Neither Jefferson nor Franklin is saying we do not have a Natural Right to moveable property. We certainly do – especially to that property which is necessary to preserve our lives. Our just claim to this sort of property is found through the application of our labor, and I explain this in more detail here. But land is not something we can claim a right to in Nature. Before a right to land, intellectual property and other such entities can be created, government must first be formed and laws governing these forms of property must be written and agreed to by the people. From that point forward, society – through its elected representatives and legislative body – may grant individuals a limited ability to treat that property as personal or private, but society still retains ultimate control over those rights because society created them. Thus, there can be no Natural Right to land, intellectual property or corporations because they are not natural. They are created by man, and men have the Natural Right to control their own creations. But note: it is not the land, the thoughts or intellectual ideas that have been created here; only the civil right to treat them as personal or private.

The founders drew heavily from the Bible is designing our government. Franklin pointedly said so in a letter to a friend of his after the Constitution had been completed. IN the Bible, land is allowed to be treated as private property for set periods of time, after which, it was returned to the family clans to be re-sold from start. In this way, the concentration of wealth was prevented and the renewal of the free market was assured. Think of it as a form of economic renewal, or fertilization of the market. The founders accepted this concept, though they understood it could not be employed in the same fashion in this land. So they sought to achieve the same goal through the inheritance laws. If we were to argue for the founders’ understanding of how to preserve a healthy and free market today, we would be called – and I have been – a Marxist. The common assumption today is that our founders were not against the concentration of wealth, which – if this were true — would then begs the question, why would Jefferson write these words?

“If the overgrown wealth of an individual is deemed dangerous to the State, the best corrective is the law of equal inheritance to all in equal degree; and the better, as this enforces a law of nature, while extra-taxation violates it.”

–Thomas Jefferson: Note in Destutt de Tracy’s “Political Economy,” 1816. ME 14:466

At once, we see two principles of Natural Law at work here. First, the State (i.e. the people) has a right to control the concentration of wealth if they believe it threatens their liberty. In this narrow sense, Marx was right o be concerned – as men such as George Soros have clearly demonstrated. But then, look what Jefferson says: he says we should use a system as similar to that of the Bible to deal with this concentration of wealth – not taxation! Jefferson is clearly admitting that a concentration of power such as that which we see in modern corporations can be a threat to the nation. He also says that the nation has a right to control this concentration of power – as he argued in the quote above and I just expounded upon. But, according to Jefferson, taxation is not the remedy. This is because it is an un-equal treatment of citizens: an unequal application of the law — in short, a violation of Natural Law. Instead, Jefferson is arguing for a system or policy that achieves the same goal while operating according to the principles of Natural Law.

This is all I am arguing for: not the abolition of a right to treat land or intellectual property as private (so long as we do so responsibly), but that we structure our society and economy so that it operates within the principles of Natural Law. Corporations totally destroy any possibility of doing so because they become people with life-spans that – theoretically – do not end. And thus, they violate another of Jefferson’s principles of liberty: that the dead should never be allowed to inherit or control the living. I simply do not see how anyone can oppose this position and still claim to be for liberty. In truth, if a person argues for things that violate Natural Law instead of supporting it, they are arguing for anything but liberty. They are claiming to be above the Laws of Nature, and that is a place where I refuse to stand. I am not that brave (nor foolish).